Judge: State must explain why it removed information from child abuse records

Judge: State must explain why it removed information from child abuse records

Franklin Circuit Court Judge Phillip Shepherd said after an almost one-hour court hearing Monday that he expects the hearing to be set in the next 60 days. At the hearing, Cabinet for Health and Family Services officials will have to explain why they removed the names of parents, grandparents and other key information from more than 140 case files.

What information can be removed from the case files is at issue in a long-running legal battle between the cabinet and the state’s two largest newspapers. The newspapers asked for all case files of children who have been killed or nearly killed as a result of abuse and neglect in 2009 and 2010.

Shepherd has ruled twice in the past two years that when a child is killed or nearly killed the records can be reviewed by the public and are subject to the Open Records Act. Social worker files on abused and neglected children typically are not open to public inspection.

But the cabinet has argued with the Herald-Leader and The Courier-Journal over what information can be removed or redacted from those case files. Lawyers for the newspapers have argued that the cabinet has removed so much information that some of the case files are difficult to follow and it’s impossible to tell if social workers and others are doing their jobs.

Information that has been removed includes names of parents or other adults who have not been charged, names of people who reported suspected abuse and any previous reports of abuse and neglect that were not substantiated by social workers.

Shepherd said Monday that the newspapers should pick between 10 and 20 cases. The cabinet will have to show during that hearing why the information was removed from those specific case files.

If there are additional questions about why the cabinet removed information, there may be an additional hearing, Shepherd said.

Christina Heavrin, general counsel for the cabinet, said the cabinet had developed a general protocol for redactions and has applied that to all of the case files.

But Shepherd said some of the exemptions that the cabinet cited should be specific to the 140 case files. For example, the cabinet is claiming that people’s names should be redacted from the files because they are entitled to privacy. But the state Supreme Court has previously ruled that privacy exemptions should be decided on a case-by-case basis.

The cabinet has also repeatedly argued that the identities of those who report abuse should be kept secret because people may be afraid to report abuse or neglect if their names are made public.

But, Shepherd asked, without knowing who reported what to the cabinet, how will the public know if the child protection system works?

“You can’t have proper scrutiny of a public agency if you don’t know who the witnesses are,” Shepherd said.

Jon Fleischaker, attorney for The Courier-Journal, said that the cabinet has also claimed privacy exemptions for most of the information that they have removed from the case files.

“There has been no effort to find out if it is even private,” Fleischaker said.

Cabinet officials also said Monday that there were additional files from 2009 and 2010 that will be released soon. Those files were not released earlier because there was an ongoing criminal case. The Open Records Act allows state and local governments to withhold information if there is a criminal case.